| People v Allen |
| 2013 NY Slip Op 02260 [105 AD3d 754] |
| April 3, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Terrell Allen, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andEmil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered August 12, 2010, convicting him of murder in the second degree,attempted murder in the second degree, criminal possession of a weapon in the seconddegree (two counts), and menacing in the second degree, upon a jury verdict, andsentencing him to an indeterminate term of imprisonment of 25 years to life on theconviction of murder in the second degree, a determinate term of imprisonment of 25years followed by a period of five years of postrelease supervision on the conviction ofattempted murder in the second degree, to run consecutively with sentence imposed uponthe conviction of murder in the second degree and concurrently with the sentencesimposed upon the convictions on all other counts, determinate terms of imprisonment of15 years followed by a period of five years of postrelease supervision on the convictionsof criminal possession of a weapon in the second degree, to run concurrently with thesentences imposed upon the convictions of all other counts, and a definite term ofimprisonment of one year on the conviction of menacing in the second degree, to runconcurrently with the sentences imposed upon the convictions of all other counts. Theappeal brings up for review the denial, after a hearing (Cooperman, J.), of that branch ofthe defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by directing that all of the terms of imprisonment shall run concurrently witheach other; as so modified, the judgment is affirmed.
Although the hearing court erred in denying the defendant's motion to suppress alineup identification, the error in admitting the evidence was harmless because the otherevidence of the defendant's guilt, including the identification testimony of twoeyewitnesses who were not present at the lineup identification, was overwhelming, andthere is no reasonable possibility that the error might have contributed to his conviction(see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Smith, 22 AD3d510 [2005]; cf. People vPolhill, 102 AD3d 988, 989 [2013]).
The trial court properly refused to allow the defendant to introduce extrinsicevidence on a collateral matter to impeach the credibility of a witness, as that witness wasnot the source of the evidence sought to be introduced (see People v Clarkson, 78AD3d 1573, 1574 [2010]; cf. People v [*2]Mullings, 83AD3d 871 [2011]).
"An indictment is duplicitous when a single count charges more than one offense"(People v Alonzo, 16 NY3d267, 269 [2011]). In contrast, an indictment is multiplicitous "when a single offenseis charged in more than one count" (id. at 269) Here, the murder and attemptedmurder counts of the indictment were not multiplicitous (see People v Kindlon,217 AD2d 793, 794-795 [1995]). Furthermore, the defendant's contention that theevidence at trial impermissibly resulted in his conviction on duplicitous counts isunpreserved for appellate review, as no objection was made by the defendant's counselon this issue (see CPL 470.05 [2]), and we decline to reach the issue in theexercise of our interest of justice jurisdiction.
The sentence imposed was excessive to the extent indicated herein. Eng, P.J.,Dickerson, Hall and Lott, JJ., concur.